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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILFREDO IRRIZARRY, Appellant.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum:

Defendant appeals from a judgment convicting him after a jury trial of promoting prison contraband in the first degree (Penal Law § 205.25). We reject the contention of defendant that the verdict is against the weight of the evidence. A sergeant at the correctional facility testified that he observed defendant sitting on a step in the recreation area, scraping something. The sergeant ordered defendant to hand over the item, which was a metal rod, approximately three inches long, that was partially sharpened. The sergeant testified that the item was a weapon. We conclude that the jury did not fail to give the evidence the weight it should be accorded on the issue of defendant's possession of dangerous contraband ( see People v Sharpe, 295 AD2d 957, 958; see also People v Mendoza, 244 AD2d 815, 816-817, lv denied 91 NY2d 943; see generally People v Bleakley, 69 NY2d 490, 495). The further contention of defendant that he was impermissibly penalized for asserting his right to a trial is not preserved for our review ( see People v Hurley, 75 NY2d 887; People v Robinson, 287 AD2d 582, lv denied 97 NY2d 708). In any event, that contention is without merit. "The mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial" ( People v Simon, 180 AD2d 866, 867, lv denied 80 NY2d 838; see People v Pena, 50 NY2d 400, 412, rearg denied 51 NY2d 770, cert denied 449 US 1087). A review of the record reveals no evidence of retaliation or vindictiveness on the part of County Court ( see People v White, 12 AD3d 1200, lv denied 4 NY3d 768; Robinson, 287 AD2d at 582-583; Simon, 180 AD2d at 867).

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STATE v. IRRIZARRY
(Feb 8, 2007)